Citation NR: 9802385
Decision Date: 01/28/98 Archive Date: 02/02/98
DOCKET NO. 96-47 888 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Whether an overpayment of educational assistance benefits,
paid pursuant to Chapter 30, Title 38, United States Code, in
the amount of $777.18, was properly created.
ATTORNEY FOR THE BOARD
L. Helinski, Associate Counsel
INTRODUCTION
The veteran had active service from November 1974 to November
1979 and from January 1982 to May 1992.
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a May 1996 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma, which denied the benefit sought on
appeal. The veteran appealed that determination to the BVA
for review.
REMAND
A preliminary review of the veteran’s Chapter 30 file reveals
that in the veteran’s VA Form 9, Appeal to the Board of
Veterans’ Appeals, received at the RO in September 1996, the
veteran indicated that she wished to appear personally at a
hearing before a member of the Board of Veterans’ Appeals, at
a local VA office. However, in October 1996, the RO sent the
veteran a letter indicating that her appeal was being
certified to the BVA for disposition; VA Form 8,
Certification of Appeal, was dated on November 1, 1996. On
November 4, 1996, the RO sent the veteran a letter indicating
that her name was placed on the list of persons who wished to
appear before a traveling section of the BVA. There is no
indication in the veteran’s Chapter 30 file that a hearing
was ever scheduled, or that the veteran withdrew her request
for a hearing.
Further, in December 1997, the BVA received correspondence
from the veteran, indicating that she could not come to
Washington, D.C. for a hearing, but that she would like a
hearing scheduled in Oakland, CA, which is where she lives.
The veteran indicated that she had previously requested that
her case be heard before a traveling member of the Board, but
had recently received a letter indicating something to the
contrary. There thus appears to be some confusion on the
veteran’s part as to whether she received information
concerning the purported hearing which may, in part, explain
the notation on the certification to the Board that the
veteran failed to report for the scheduled hearing.
Therefore, in light of the foregoing, and to ensure full
compliance with due process requirements, the case is
REMANDED to the RO for the following:
The RO should undertake all necessary
action to properly schedule the veteran
for a personal hearing before a member of
the Board, at a RO location convenient
for the veteran, as soon as is
practicable.
Should the veteran withdraw her request for a hearing, the
case should be returned to the Board for further
consideration. The Board intimates no opinion as to the
ultimate outcome of this case. The veteran need not take any
action, until she is otherwise notified.
S. L. KENNEDY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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